# C_2019312EN.01000201.xml

| 16.9.2019 | EN | Official Journal of the European Union | C 312/2 |
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16.9.2019

EN

Official Journal of the European Union

C 312/2

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Request for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sardegna (Italy) lodged on 25 April 2019 — Telecom Italia SpA v Regione Sardegna

(Case C-338/19)

(2019/C 312/02)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Sardegna

Parties to the main proceedings

Appellant: Telecom Italia SpA

Respondent: Regione Sardegna

Questions referred

| 1. | Must Article 16 of Regulation (EC) No 659/1999/EC of 22 March 1999, (1) applicable ratione temporis, which provides that ‘Without prejudice to Article 23, the Commission may in cases of misuse of aid open the formal investigation procedure pursuant to Article 4(4). Articles 6, 7, 9 and 10, Article 11(1), Articles 12, 13, 14 and 15 shall apply mutatis mutandis’, be interpreted as meaning that a preliminary decision to recover aid must be adopted by the European Commission also in cases involving misuse of aid (without prejudice to the Commission’s power to refer the matter directly to the Court of Justice of the European Union, pursuant to Article 23 of Regulation No 659/1999/EC)?
  If the previous question is answered in the negative, must Article 16 of Regulation No 659/1999/EC of 22 March 1999 be declared invalid on the basis that it is in breach of Article 108(2) of the Treaty on the Functioning of the European Union (formerly Article 88(2) EC)? |
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1.

Must Article 16 of Regulation (EC) No 659/1999/EC of 22 March 1999, (1) applicable ratione temporis, which provides that ‘Without prejudice to Article 23, the Commission may in cases of misuse of aid open the formal investigation procedure pursuant to Article 4(4). Articles 6, 7, 9 and 10, Article 11(1), Articles 12, 13, 14 and 15 shall apply mutatis mutandis’, be interpreted as meaning that a preliminary decision to recover aid must be adopted by the European Commission also in cases involving misuse of aid (without prejudice to the Commission’s power to refer the matter directly to the Court of Justice of the European Union, pursuant to Article 23 of Regulation No 659/1999/EC)?

If the previous question is answered in the negative, must Article 16 of Regulation No 659/1999/EC of 22 March 1999 be declared invalid on the basis that it is in breach of Article 108(2) of the Treaty on the Functioning of the European Union (formerly Article 88(2) EC)?

| 2. | Must Article 9(1) and (2) of Commission Regulation (EC) No 794/2004 of 21 April 2004 (implementing Council Regulation (EC) No 659/1999 of 22 March 1999), (2) as amended by Commission Regulation (EC) No 271/2008 of 30 January 2008, (3) be interpreted as meaning that the interest rate stipulated in that provision for the recovery of incompatible and unlawful State aid also applies in the case where State aid authorised by a conditional decision and misused is to be recovered because the condition laid down therein was satisfied? |
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2.

Must Article 9(1) and (2) of Commission Regulation (EC) No 794/2004 of 21 April 2004 (implementing Council Regulation (EC) No 659/1999 of 22 March 1999), (2) as amended by Commission Regulation (EC) No 271/2008 of 30 January 2008, (3) be interpreted as meaning that the interest rate stipulated in that provision for the recovery of incompatible and unlawful State aid also applies in the case where State aid authorised by a conditional decision and misused is to be recovered because the condition laid down therein was satisfied?

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(1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

(2)  Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 2004 L 140, p. 1).

(3)  Commission Regulation (EC) No 271/2008 of 30 January 2008 amending Regulation (EC) No 794/2004 implementing Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 2008 L 82, p. 1).

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